knowledge 19 November 2018 |

How Fundamental is the Rule of Law? An EU Showdown on Judicial Independence

The European Commission has referred Poland to the CJEU¹ due to violations of the principle of judicial independence created by the new Polish Law on the Supreme Court (the “Polish Law”). The CJEU has also ordered far-reaching interim measures against Poland requiring it to suspend the Polish Law.²

The EU identifies as a union based on the rule of law and applicant states have to satisfy certain minimum requirements to be eligible for admission. An independent judiciary is an essential element of the rule of law. The independence of national courts and tribunals is essential for the functioning of judicial co-operation between EU Member States, and particularly for the preliminary ruling mechanism under Article 267 of the TFEU.

The European Commission argues that the Polish Law is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges, and that therefore Poland is failing to fulfil its obligations under Article 19(1) of the TEU read in connection with Article 47 of the Charter of Fundamental Rights of the European Union.  

In anticipation of the Polish Law coming into force, the Commission, in December 2017, adopted a reasoned proposal inviting the European Council to determine, on the basis of Article 7(1) TEU, that there was a clear risk of a serious breach by Poland of the rule of law. 

The Polish Law came into force on 3 April 2018. It lowers the retirement age of Supreme Court judges from 70 to 65, putting 27 of 72 sitting Supreme Court judges at risk of being forced to retire. This measure also applies to the First President of the Supreme Court, whose six-year mandate, set out in the Polish Constitution, would be prematurely terminated.

According to the Polish Law, judges affected by the lowered retirement age may request a prolongation of their mandate from the President of Poland for a period of three years, and renewed once. However, there are no clear criteria set out based on which the President might decide to grant or refuse a decision to extend a judge in office and judicial review is unavailable if the President rejects the request.  The only apparent safeguard is a non-binding consultation with the National Council for the Judiciary, a body whose composition is already considered to violate European standards on judicial independence.

Poland’s response to the Commission’s subsequent formal notice in July 2018 and reasoned opinion sent in August 2018 has not assuaged the Commission's legal concerns.  Indeed, the implementation of the contested retirement regime is being accelerated, which is regarded as creating a risk of serious and irreparable damage to judicial independence in Poland, and therefore of the EU legal order. 

The CJEU had already signalled its concerns in its July 2018 decision on a reference, which caused considerable hostility in Poland, by the Irish High Court,³ under Article 267 TFEU about whether concerns regarding judicial independence in the requesting state could be taken into account in deciding whether to execute a European Arrest Warrant against a Polish national in Ireland.  

The CJEU’s response  could not have been clearer in that case that the executing judicial authority:  

“must, as a first step, assess, on the basis of material that is objective, reliable and properly updated concerning the operation of the system of justice in the issuing Member State ….., whether there is a real risk connected with a lack of independence of the courts of that Member State on account of systemic or generalised deficiencies there, of the fundamental right to a fair trial being breached”.⁴ 

Such a finding by a national court would involve an exception to judicial co-operation between EU Member States based on the mutual trust required between the courts of Member States, and a national court is entitled to reach this conclusion in an individual case on its own merits. However, the CJEU reserved the power to suspend mutual trust in this regard generally in relation to a particular Member State exclusively to the European Council.⁵ 

The Commission then moved to the next stage of the infringement procedure, deciding to refer the case to the CJEU, and asking the CJEU to order interim measures, restoring Poland's Supreme Court to its situation before 3 April 2018. On 19 October 2018, the Vice-President of the CJEU ordered Poland to suspend the effects of the Polish Law and, in particular, to ensure that no sitting judge is removed as a result of the new retirement age.  

This interim order is revolutionary and of course involves a highly unusual intrusion in the internal affairs of a Member State, justified perhaps by extraordinary action by that Member State’s executive. However, the CJEU has entered a new arena, potentially forcing a sovereign Member State to choose between its EU membership and controlling its own judicial appointments arrangements.  It is quite a gamble on the part of the Luxembourg court, but the stakes are so high that the CJEU perhaps had no choice. Illiberal rhetoric has become common in the EU, but when it converts into government action threatening the rule of law, the EU institutions have no other choice but to stand firm and insist that such laws are dismantled.  

How Poland responds, and how this high stakes case develops in the expedited CJEU procedure will be watched carefully.